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25.6 Accomplices: Cautionary Instructions

    25.6.1 Accomplice Testimony: Cautionary Instruction
    25.6.2 Accomplice, Informer, Immunity: Testimony From Such Witness Should Be Considered With Greater Caution
    25.6.3 Accomplice: Cautionary Instruction -- Applies To Incriminating Evidence Only
    25.6.4 Accomplice Instruction: Improper When Accomplice Is Codefendant
    25.6.5 Accomplice Testimony Cautionary Instruction Should Not Be Limited To Testimony
    25.6.6 No Reference To The Term "Accomplice"
    25.6.7 Informing Jurors As To Why Accomplice Testimony Should Be Viewed With Caution
    25.6.8 Combining Reasons For Questioning Credibility Of Informers And Accomplices In A Single Instruction
    25.6.9 Accomplice Liability/Perpetrator Unanimity: At Least One Person Must Have Committed All Elements Of The Charge
    25.6.10 Accomplice Testimony: Federal Circuit Model Instructions And Notes

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RATIONALE: Because there is a natural tendency for an accomplice to shift the blame to others, the jury should consider accomplice testimony with caution.

POINTS AND AUTHORITIES: "Apart from the accomplice's hope that the prosecution will reward testimony resulting in a conviction, there are sound reasons why accomplice testimony "ought to be received with suspicion, and with the very greatest care and caution, and ought not to be passed upon by the jury under the same rules governing other and apparently credible witnesses." (Crawford v. U.S. (1909) 212 US 183, 204 [29 SCt 260; 53 LEd 465]; U.S. v. Chatman (10th Cir. 1993) 994 F2d 1510, 1515 [accomplice testimony must be carefully scrutinized, weighed with great care, and received with caution]; People v. Guiuan (CA 1998) 18 C4th 558, 574 [76 CR2d 239] (Kennard, J., concurring opinion).)

    Accordingly, the jury should be instructed to view accomplice testimony with caution. (See e.g., U.S. v. Skandier (1st Cir. 1985) 758 F2d 43, 46 [cautionary instruction as to accomplice must be given if requested]; Grieco v. Meachum (1st Cir. 1976) 533 F2d 713, 721 [state court ill-advisedly failed to give a "close scrutiny" instruction as to accomplice testimony; but instruction was not constitutionally required]; but see State v. Smith (MO 1990) 800 SW2d 794, 795-96 [no error to refuse additional accomplice instruction beyond general credibility instruction].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

See Wharton’s Criminal Law (West, 15th ed. 1993) § 38, pp. 234-37.

See generally, FORECITE National™ 305.1.5 [Accomplices]

See generally, FORECITE National™ 25.6.10 [Accomplice Testimony:  Federal Circuit Model Instructions And Notes].

    Consider whether or not an accomplice's testimony is truthful, accurate and complete.  A witness who believes that he or she may obtain or secure freedom or favorable treatment by incriminating another has a motive to lie and/or slant his or her testimony in a way that favors the witness' own interest.

    The testimony of an accomplice should be treated with suspicion and scrutinized with extreme caution.

    Experience teaches that an accomplice will often try to place the blame falsely on someone else.  A witness who realizes that he or she may obtain his or her own freedom by incriminating another has a motive to lie and/or slant his or her testimony in a way that favors the witness' own interest.

    An accomplice may have special motives in testifying.  You must consider such testimony with great caution and view it with grave suspicion.  Consider whether the witness's testimony was falsely slanted to make the defendant seem guilty because of the witness's own interests or to remove suspicion from others, or because the witness feared retaliation from others.

    Any testimony or statements of an accomplice offered to incriminate the defendant must be examined with great care and caution.  Consider whether the witness's testimony was falsely slanted to make the defendant seem guilty because of the witness's own interests or to remove suspicion from others, or because the witness feared retaliation from others.

    You have heard the testimony of [name of witness]. He/She

    (1) provided evidence under agreements with the government;

[and/or]

    (2) participated in the crime charged against [defendant];

[and/or]

    (3) received money [or . . .] from the government in exchange for providing information.

    Some people in this position are entirely truthful when testifying. Still, you should consider the testimony of these individuals with particular caution. They may have had reason to make up stories or exaggerate what others did because they wanted to help themselves.

[1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.07 [Cautions As To Cooperating Witness/Accomplice/Paid Informant] (2002).]

    You have heard testimony from a person who admitted being an accomplice to the crime charged. An accomplice is one who voluntarily and intentionally joins with another person in committing a crime. You should consider such testimony with greater caution than that of an ordinary witness.

[Adapted from 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 4.11 [Testimony Of Accomplice] (2000).]

    Consider an accomplice's testimony more cautiously than you would the testimony of an ordinary witness. Be sure you have scrutinized it closely before you accept any part of it.

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RATIONALE: To simply tell the jury to view the testimony of an accomplice with caution is not effective because the jury will know that it is to consider all testimony with caution. Therefore, for the jury to understand the significance the instruction should require the exercise of "greater caution" as to the testimony of an accomplice.

POINTS AND AUTHORITIES: Some jurisdictions simply instruct the jury that an accomplice should be viewed with caution. (See e.g., People v. Guiuan (CA 1998) 18 C4th 558, 569 [76 CR2d 239].) However, this language may not adequately convey that "the jury pay special heed to incriminating evidence because it may be biased...." (Guiuan, 18 C4th at 569, fn 4.) This is so because the jury may rightfully believe that it is their duty to consider all testimony with "care and caution." Not only would the jurors reasonably conclude on their own that care and caution should be used in all aspects of jury service, but other standard instructions may specifically admonish the jury that it should  carefully or conscientiously consider and weigh the evidence. Hence, admonishing the jury to view the testimony with caution does not clearly convey that any special or greater scrutiny need be given to the accomplice testimony.

    A more accurate instruction would include language requiring the jury to use "greater caution" in considering accomplice testimony. (See e.g., U.S. v. Delgado (8th Cir. 1990) 914 F2d 1062, 1067 [jury instructed that testimony of codefendant should be viewed with greater caution and care than that used with ordinary witnesses]; Evans v. State (AK 1976) 550 P2d 830, 842; Fresneda v. State (AK 1971) 483 P2d 1011, 1015.) In this way the jurors would more likely understand that they must pay "special" heed to the accomplice testimony.

    See FORECITE National™ 25.7.7 [Jailhouse Informer: Cautionary Instruction].

    See also FORECITE National™ 25.6.1 [Accomplice Testimony: Cautionary Instruction].

    See also FORECITE National™ 25.5.1 [Immunized Witness To Be Viewed With Greater Caution Or Distrust: Exposure To Perjury From Immunity Agreement].

    See also FORECITE National™ 27.2.5 [Testimony Of Witness Who Was Under The Influence Of Drugs Or Alcohol When Testifying Should Be Viewed With Greater Caution Than Other Witnesses].

    See also FORECITE National™ 25.5.2 [Testimony Under Grant Of Immunity: Greater Caution Than Ordinary Witness].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

See Benchbook For U.S. District Court Judges [5.03 Invoking The 5th Amendment].

See also generally, FORECITE National™ 305.1.5 [Accomplices]

See generally, FORECITE National™ 25.6.10 [Accomplice Testimony:  Federal Circuit Model Instructions And Notes].

    In deciding whether to believe testimony given by an accomplice,* you should use greater care and caution than you do when deciding whether to believe testimony given by a nonaccomplice.

    You should consider [accomplice]* testimony with greater caution than that of an ordinary witness.

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 4.11 [Testimony Of Accomplice] (2000).]

   So, while a witness of that kind may be entirely truthful in testifying, you should consider that testimony with more caution than the testimony of other witnesses.

[11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL Special Instruct.1.3 [Accomplice-Addictive Drugs-Immunity] ¶ 3 (1997).]

    Consider an accomplice’s* testimony more cautiously than you would that of an ordinary witness. Be sure you have scrutinized it closely before you accept it in whole or part.

* See FORECITE National™ 19.3.17 [No Reference To The Term "Accomplice"].

    You have heard the testimony of [name of witness]. He/She

    (1) provided evidence under agreements with the government;

[and/or]

    (2) participated in the crime charged against [defendant];

[and/or]

    (3) received money [or . . .] from the government in exchange for providing information.

    Some people in this position are entirely truthful when testifying. Still, you should consider the testimony of these individuals with particular caution. They may have had reason to make up stories or exaggerate what others did because they wanted to help themselves.

[1ST CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 2.07 [Caution As To Cooperating Witness/Accomplice/Paid Informant] (2002).]

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PRACTICE NOTE: The rationale for the accomplice corroboration rule and any instruction that accomplice testimony should be viewed with caution is inapplicable when the accomplice is neither attempting to shift the blame to the defendant nor expecting leniency in exchange for his testimony. (See e.g., People v. Guiterrez (CA 1991) 232 CA3d 1624, 1637 [284 CR 230]; see also 7 Wigmore on Evidence (Chadbourne Rev.) § 2057, p. 417.) Accordingly, such instructions should be limited to "incriminating" (and not exculpatory) accomplice testimony. (See Guiterrez, 232 CA3d at 1637; see also People v. Harmon (CA 1992) 7 CA4th 845, 849-50 [9 CR2d 265] [error to give accomplice corroboration instructions as to testimony favoring defendant absent request by defendant]; Selman v. State (TX 1991) 807 SW2d 310, 311;Gordon v. State (TX 1982) 640 SW2d 743, 756; but see U.S. v. Bolin (7th Cir. 1994) 35 F3d 306, 308 [instruction proper regardless of whether testimony is inculpatory or exculpatory]; State v. Anthony (KS 1988) 749 P2d 37, 42-44 [accomplice instruction proper even when testimony is favorable to criminal defendant and defendant objects to the instruction].)

    Hence, where the rationale for the accomplice corroboration rule is absent it makes no sense to require that the accomplice's testimony be corroborated and viewed with caution. "The essential element ... it must be remembered, is this supposed promise or expectation of conditioned clemency. If that is lacking, the whole basis of mistrust fails." (Wigmore on Evidence, supra, at 417.)

    People v. Guiuan (CA 1998) 18 C4th 558, 564 [76 CR2d 239] adopted FORECITE National™ ^'S position that the accomplice instruction should be modified to apply only to evidence which tends to incriminate the defendant and not to evidence which is favorable to the defendant. (See also People v. Williams (CA 1988) 45 C3d 1268, 1313-14 [248 CR 834].) The modified instruction is required sua sponte. (Guiuan, 18 C4th at 564.)

    The failure to properly instruct the jury on accomplice testimony implicates the defendant's federal constitutional right to due process and a fair jury trial. (5th, 6th and 14th Amendments; see Montana v. Egelhof (1996) 518 US 37, 43 [116 SCt 2013; 135 LEd2d 361] [historical practice is primary guide in determining "fundamental principles of justice" for due process analysis]; see also Medina v. California (1992) 505 US 437, 446 [112 SCt 2572; 120 LEd2d 353]; Schad v. Arizona (1991) 501 US 624, 625 [111 SCt 2491; 115 LEd2d 555]; see also FORECITE National™ 19.3.15 [Accomplice Cautionary Instruction: Refusal As Reversible Error].)

See generally, FORECITE National™ 305.1.5 [Accomplices].

See generally, FORECITE National™ 25.6.10 [Accomplice Testimony:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: "It is clearly erroneous to give an accomplice instruction when the accomplice is also a codefendant, and the instruction is not neutral or singles out the accomplice codefendant. [Citation.]" (PATTERN INSTRUCTIONS FOR KANSAS - CRIMINAL, PIK - Criminal 3d 52.18 [Evidence And Guides For Its Consideration-Testimony Of An Accomplice], comment p. 93 (Kansas Judicial Council, 3rd ed. 1999).)

    In a multi-defendant case in which one of the defendants testifies, an instruction that accomplice testimony should be viewed with distrust constitutes inappropriate comment on the defendant’s testimony.  (See Gordon v. State (AK 1987) 533 P2d 25, 29; see also Carman v. State (AK 1979) 602 P2d 1255, 1260.)

See generally, FORECITE National™ 25.6.10 [Accomplice Testimony:  Federal Circuit Model Instructions And Notes].

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RATIONALE: Without an explanatory instruction the jury may improperly assume that the accomplice testimony cautionary instruction does not apply to the accomplice's out of court statements.

POINTS AND AUTHORITIES: When the prosecution relies on out of court statements of an accomplice use of the term "testimony" in the accomplice cautionary instruction is inadequate because the jury will not likely understand that the term "testimony" applies to out of court statements.

    For example, the California Supreme Court has held that when the prosecution relies upon out-of-court statements "the trial court should substitute the word 'statement[s]' for 'testimony' ...." (People v. Andrews (CA 1989) 49 C3d 200, 215, fn 11 [260 CR 583]; see also People v. Belton (CA 1979) 23 C3d 516, 516 [153 CR 195].) Subsequent decisions have limited this rule to out-of-court statements which are made under "suspect circumstances." (People v. Williams (CA 1997) 16 C4th 153, 245-46 [66 CR2d 123] [discussing Belton]; but see People v. Sully (CA 1991) 53 C3d 1195, 1230 [283 CR 144]; People v. Jeffrey (CA 1995) 37 CA4th 209, 218 [43 CR2d 526].)

    Accordingly, in jurisdictions where only the term "testimony" is used, the instruction should be modified when appropriate.

    See also FORECITE National™ 25.6.6 [No Reference To The Term "Accomplice"].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

USE NOTE: When the prosecution relies upon both out-of-court statements and in-court testimony further modification may be appropriate to make it clear that the cautionary instruction rule applies to both.

See generally, FORECITE National™ 305.1.5 [Accomplices].

See generally, FORECITE National™ 25.6.10 [Accomplice Testimony:  Federal Circuit Model Instructions And Notes].

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RATIONALE: Instructions which inform the jury that a coparticipant in the crime is an "accomplice," pose a danger that the jury may infer the guilt of the defendant from the guilt of the "accomplice."

POINTS AND AUTHORITIES: Instructions which inform the jury that a coparticipant in the crime is an "accomplice," pose a danger that the jury may infer the guilt of the defendant from the guilt of the "accomplice." (See People v. Hill (CA 1967) 66 C2d 536, 555 [58 CR 340] [where a codefendant has made a judicial confession, an instruction that as a matter of law such codefendant is an accomplice of the other defendant may well be construed by the jurors as imputing the codefendant's foregone guilt to the other defendant]; see also ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 3.17 [Evidence Of Defendant’s Reputation] (West, 4th ed. 2000) [by referring to a witness as an accomplice, there is a danger that the jury will interpret the instruction to include a judicial determination that the defendant, as the accomplice’s accomplice, must also be guilty. Accordingly, the word "accomplice" should be eliminated]; UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI 1051 [Accomplice Witness-Definition] (Oregon State Bar, 1999 Supp.) ["The court should be careful not to instruct the jury in such a manner that the court implies that, if the jury finds that the accomplice witness committed the crime, it must also find that the defendant committed the crime."].) After all, if there is an accomplice, there must also be a perpetrator. When the defendant is the only other possible choice as the perpetrator, instruction that the other participant is an accomplice acts to direct a verdict against the perpetrator. (See generally People v. Figueroa (CA 1986) 41 C3d 714 [224 CR 719].)

    Moreover, by utilizing the term "accomplice," the court is making a comment on the evidence which the jury may take as a suggestion that the court believes the defendant to be guilty. "The trial court may not, in the guise of privilege, withdraw material evidence from the jury's consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury's ultimate fact-finding power. [Citations.]" (People v. Rodriguez (CA 1986) 42 C3d 730, 766 [230 CR 667].) And, to the extent that proper judicial comment is permitted, the jury should be expressly informed that it is not bound to accept the judge's interpretation and may disregard any or all of the comments with which the jurors do not agree. (See FORECITE National™ 16.14.3.2 [Judge/Court Comments On The Evidence]; see also People v. Lucero (CA 1988) 44 C3d 1006, 1021 [245 CR 185] [improper judicial comment on evidence].) "It is improper...for the court to single out a particular witness in an instruction, since by doing so, the court charge becomes a comment on how the evidence should be considered, rather than a general instruction on a defense theory. [Citations.]" (People v. Harris (CA 1989) 47 C3d 1047, 1099 [255 CR 352].) Moreover, a judge's comment on the evidence may also violate the state and federal constitutional right to due process and fair trial by jury. (See U.S. v. Fuller (4th Cir. 1998) 162 F3d 256, 259-60.)

    Hence, the other participant should not be referred to as an accomplice as a matter of law, but rather the accomplice instructions should simply refer to the person by name rather than as an "accomplice." Alternatively, the jury could be instructed not to assume the defendant is guilty from the fact that the other person is an accomplice.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.2; 2.3; 10.3].

PRACTICE NOTE: This argument has been successfully used by FORECITE National™ subscribers in California to modify the standard CALJIC instructions to replace the word "accomplice" with the actual name of the testifying accomplice.

USE NOTE: In cases involving both an accomplice as a matter of law and a possible accomplice depending on the jury's determination, separate instructions may have to be drafted to avoid informing the jury that there is an accomplice as a matter of law.

See generally, FORECITE National™ 305.1.5 [Accomplices].

See generally, FORECITE National™ 25.6.10 [Accomplice Testimony:  Federal Circuit Model Instructions And Notes].

[Modify the standard pattern instructions by replacing the term "accomplice" with the name of the witness.]   

    Although I have instructed you on the law of accomplice testimony, do not assume from this instruction that the defendant committed the charged acts.  It is the prosecution's burden to prove the defendant's guilt beyond a reasonable doubt independently of any evidence of an accomplice's guilt.

SAMPLE INSTRUCTION # 3:

    Even if you find that ________________ (name of witness) was an accomplice, you may not vote to convict the defendant unless the prosecution has proved the defendant guilty beyond a reasonable doubt.

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RATIONALE: A cautionary instruction is more helpful and effective if it gives the reasons why greater caution is required.

POINTS AND AUTHORITIES: In her concurring opinion in People v. Guiuan (CA 1998) 18 C4th 558 [76 CR2d 239], Justice Kennard observed that: "A cautionary instruction is more helpful and more effective if it states the reasons why special caution is warranted." (Guiuan, 18 C4th at 570 [emphasis in original].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3].

See generally, FORECITE National™ 305.1.5 [Accomplices].

See generally, FORECITE National™ 25.6.10 [Accomplice Testimony:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See 9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 4.9, comment [Testimony Of Witness Under Grant Of Immunity] (2000) (1989 Rev.) [citing U.S. v. Bernard (9th Cir. 1980) 625 F2d 854, 858-59 [better practice is to combine cautionary instructions regarding informer, accomplice and immunity and immunized witnesses].

See generally, FORECITE National™ 305.1.5 [Accomplices].

See generally, FORECITE National™ 25.6.10 [Accomplice Testimony:  Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: See State v. Brown (NJ 1994) 651 A2d 19, 38 [jurors need not be unanimous as to which of multiple codefendants is principal and which was accomplice, where all jurors agreed that one codefendant performed all elements of the offense when charged as principal, and that the other codefendant knowingly participated in the criminal act].

    See also FORECITE National™ 273.7.1.4 [Jury Unanimity: Direct Perpetrator vs. Accomplice Liability].

    See also FORECITE National™ 276.7.5 [Multiple Defendants: Elements of Charge Must Be Specified As To Each Defendant].

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    25.6.10    Accomplice Testimony:  Federal Circuit Model Instructions And Notes

See 1st Circuit Pattern Jury Instructions - Criminal 2.07.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.14.

See also 6th Circuit Pattern Jury Instructions - Criminal 7.08.

See also 7th Circuit Federal Jury Instructions - Criminal 3.13.

See also 8th Circuit Model Jury Instructions - Criminal 4.05.

See also 9th Circuit Model Jury Instructions - Criminal 4.11.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 1.1.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 24.